Judicial elections under attack elsewhere, too

In the past few days, the Wall Street Journal has run two separate opinion pieces about judicial elections — one from the left and one from the right.

Last weekend, the paper ran an op-ed titled “Justice for Sale” by James Sample, who directs the Brennan Center at NYU and has recently written a book highly critical of judicial elections.

Sample writes that, “Nationwide in 2006, business donors contributed twice as much to state supreme court candidates as attorneys, according to the National Institute on Money in State Politics.” He then criticizes individual state supreme court justices in three States (West Virginia, Wisconsin, and Illinois) in which Justices did not recuse themselves from cases in which they had received large corporate donations. Sample does not point to any problems with this in Texas. (The lack of corporate donations may be a little-appreciated virtue of the Texas system of electing judges.)

The editorial board describes Justice Butler’s appointment to the court, saying that “Liberals suddenly enjoyed a 5-4 majority on the court, and it swung sharply to the left.” As a result, the paper says, “Also noticing [this shift] were members of the state’s business community, which has proceeded to finance an election challenge to Justice Butler.” (emphasis added)

The editorial board, after praising the business community’s “financ[ing] an election challenge,” then criticizes the incumbent Justice because “the Wisconsin plaintiffs bar is pouring money into the race on his behalf. In the current election cycle, more than $228,000 in contributions have come from the state’s lawyers — more than half of the campaign’s total.”

How to conduct judicial elections in a way that maximizes public trust in the system is a difficult political question that’s worthy of debate in future legislative sessions. These two articles, in just a few days, show the very different perceptions the two sides of the civil litigation bar can have of the very same court. Perhaps unsurprisingly, both sides seem to see the other side’s contributions as corrupting the system. The public probably agrees with at least one side — if not both.